Nathans v. Morris

4 Whart. 389, 1839 Pa. LEXIS 221

• Court: Supreme Court of Pennsylvania
• Decided: April 13, 1839
• Status: Published

Opinion

The opinion of the Court was delivered by

Kennedy, J. —

All the parties, concerned seem, to have been dissatisfied with the decree of the Court below, and each, therefore, has taken an appeal. The trustees, Joseph Morris and Andrew Geyer, think themselves aggrievéd by it, because the claim made by them for compensation for their services in the execution of the trust was partly disallowed. From all that has been shown in regard to this, we are not enabled to say that the sum allowed to the trustees by the decree of the Court, is not a' reasonable cpmpensation for their services rendered, and the expense incurred by them, in the execution of that part of the trust, on account of whieh it was particularly allowed. It has, however, been objected by the other parties, that the sum allowed to the trustees for their trouble, is too great; but nothing has been adduced to satisfy us, that this objection is well founded. We therefore affirm the decree of the Court below, so far as regards the allowance made thereby to the trustees, in order that they might be recompensed for the attention and services given by them in the execution of that part of their trust, which has given rise to the present controversy. , '

Mary E. Hearttie and Horace Ramberger, a minor, and only child and representative of Anna Susanna Ramberger, named in the will of the testator, and now deceased, beside objecting to the amount of the compensation allowed to the trustees, object also to the decree of the Court below, because the Court did'not direct the whole of the surplus money arising from the sale of the two ground-rents, upon which the mortgage- rested, after satisfying the amount of the debt therein mentioned with the interest, charges and costs accrued thereon, to be invested in trust for the Jike uses and subject to the like limitations, as are declared and directed by the testator,in his .will -in regard to the ground-rents themselves, as long as there should be no occasion to sell them; whereas the complainant, Margaret Lucretia Nathans, beside excepting to the amount of the compensation allowed to the trustees, excepts to the decree of the Court, on the ground that the whole of the said surplus, was not decreed and given by the Court to her, for her sole arid separate use absolutely, in conformity to that clause in the will of the testator, which directs in these words, “ And if there should then remain any surplus of the said proceeds of sales, after pkyment of the said debt and interest, and costs and charges aforesaid, then to pay over such surplus into the hands of my said grand-daughter, Margaret Lucretia Nathans, (the complainant) to and for her sole and separate use and benefit, excluding her. husband from all right and interest therein, so that the. same or any part thereof, shall not be in his power or disposal, or subject to his control or intermeddling, or liable in any way or manner whatever, to his debts, contracts, forfeitures, or engagements, present or future, and the receipt of my said granddaughter, Margaret Lucretia Nathans, in her own name and under her own hand alone, for the said surplus of such proceeds of sales, if any there be, shall, notwithstanding her coverture, be the only sufficient discharge to my said trustees for the same, any thing hereinbefore contained to the contrary thereof in anywise notwithstanding.” This clause of the will, it must be admitted, is expressed with precision and clearness, free certainly from all ambiguity; and from its peculiar import, in excluding the husband of Mrs. Nathans, from receiving such surplus as is therein mentioned, and preventing it from being made liable for the payment of his debts, without the consent of Mrs. Nathans, it would not be unreasonable to infer thence, that the testator must have supposed it might possibly be of considerable value, on account of its large amount, and therefore might be of great benefit to Mrs. Nathans, otherwise he need not have cared for her husband’s receiving it. And being posterior in the will to the other part thereof, relied on by the defendants Hearttie and Ramberger, it is totally repugnant to it, so that the two parts cannot stand together, and it must prevail according to the rule, cum duo inter se pugnantia reperiuntur, in testamento ultimum ratum est. Co. Lit. 112, b. 2 Bl. Com. 381. That they are wholly irreconcilable ■\yith each other, and cannot stand together, is perfectly manifest, if it were intended that both should take effect at the same time, which was certainly not the case. It is not like the case where the same thing is devised or bequeathed in the same will to two different persons, about which there was great difficulty and diversity of opinion, and in which the rule, just stated, has been got over by giving it to them either as joint tenants, or tenants in common. 3 Atk. 493. Co. Litt. 112, b. Hargrave, note 1. Here the surplus which is given by the latter part of the will, to Mrs. Nathans is not the identical thing that is disposed of by the former or prior part of the will. It was not in being at the time of making the will, nor at the time of the death of the testator. It was also uncertain when, if ever, it should ■come into being; this was the view' which the testator had of it; and accordingly he intended by the latter part of his will to provide for the disposition of it, whenever it should arise, if at all, or come into existence. The prior part of the will does not touch it, and was not intended by the testator to affect it in any way whatever; the prior operates upon the ground-rents, a different thing altogether, and directs the uses to which they shall be applied, so long as they shall remain in the hands of the trustees unsold ; but then this appropriation of the ground-rents, from its very nature was to terminate upon the sale being made of them by the trustees, as therein directed; upon which event, and not before, the surplus, for the disposition whereof the latter part provides, might arise and come into being. Thus seeing that those two parts of the will are applicable to distinct and different objects, and the operation of the latter intended only to commence upon the determination of the prior, it is perfectly obvious that they are consistent with each other, and may stand together.

But it is said, that the latter part being only indicative of the particular intent of the testator, ought not to be permitted to operate so as to defeat the general intent, which, it is alleged, is manifested throughout the will. This rule, although said to have a governing influence in the construction .of wills, can have no application here, for the intention displayed in that part of the will, under which the defendants Hearttie and Ramberger claim, does not accord seemingly more with any genera] intention that may be manifested by the testator iñ his will, than the intention disclosed in the, latter clause does, under which Mrs. Nathans claims. Nordoes it appear that either of those parts can be considered as running counter to any genera] intention that can be collected from íhé whole tenor of the will: they are not only cqnsistent with each other,. but would appear to be so with the'general scope and design of'thewill.

It is also said, that the testator could not hav.e intended that so large a surplus, as there is here, should be given to Mrs. Nathans absolutely, for her sole and separate use, as directed in the latter clause of the will; that, at most, he could only have intended some small inconsiderable sum. of money; supposing that in no event, upon a sale of the ground-rents, for the purpose of paying off the mortgage, it could be more. This, if not fanciful, 'is at best merely conjectural ; and would therefore be 'a very unsafe basis to found a construction upon. If such had been his intention, nothing could have been more easy, than to have said so, and to have put an express limit upon it; but he has not done it, neither has he used any words from which it is possible to draw the conclusion that such was his intention. Indeed it may well be doubted, as has been already suggested, whether he would have considered a surplus, of a trifling amount, of sufficient importance to make it either necessary or expedient to give it in such a manner to Mrs. Nathans, as to exclude her husband from the right of receiving it. It may be, that rather than pronounce a will, or a devise, or bequest in it, void for uncertainty, what seemed from the will itself, to have been the probable intention of the testator, would be deemed sufficient to prevent it from being declared a nullity; but I apprehend that fancy or bare conjecture, ought never to be permitted to supply the want of evidence of intention ; and certainly never can be considered sufficient to set aside a clear and positive provision in a will, expressed in terms of definite and precise meaning, and therefore susceptible of but one construction. The whole of the' surplus here then is given to Mrs. Nathans, for her sole and separate use absolutely, without any qualification or limitation whatever, either as to its amount, duration, or any thing else attending it, yet the testator was certainly aware that the surplus might happen to be either small or something considerable, just as the ground-rents should happen to bring high or low prices ; for in directing the sale of them, he has ordered that they should all be sold, or such and so many of them as should be sufficient to pay off the mortgage debt, with the interest, charges and costs accrued thereon; so that it might be necessary, after having sold one of the ground-rents, to sell the second or the third, in order to make up a very small deficiency, which would be likely to produce a large surplus. But it has been objected to Mrs. Nathans claiming the whole of the surplus,' that the trustees improperly increased the amount of it beyond what it would and ought to have been, by selling the two largest ground-rents, instead of the largest and the least. It is a sufficient answer to this, however, to say that it has not been shown, that a sale of the largest and the least ground-rents would have yielded a sum of money sufficient to have satisfied the mortgage debt with the interest, charges and costs accrued thereon; and if it would not, it is evident that the sale of the remaining ground-rent, which in that, event would have become necessary, would still have increased the surplus in amount, above what it is now, and possibly have subjected the trustees to some blame. The Court below seem to have founded their decree upon the assumption of the fact, that the least ground-rent, if it had been offered for sale by the trustees, would have brought a price in proportion to its nominal amount, equal to those produced by the sales of the two largest, which with the price of the largest ground-rent, would have been sufficient to have satisfied the mortgage, beside all charges, and left a surplus of eight hundred and forty-six dollars and sixty-three cents. The Court, .accordingly, conceiving that this sum would have been the amount of the surplus, had the trustees pursued a proper course, and sold, as the Court thought they ought to have done, the largest and the least of the three ground-rents, instead of the two largest, decreed that it should be paid to Mrs. Nathans, for her sole and separate use. That the least ground-rent could have been sold equally as well as the others, had it been offered, seems to have been matter of conjecture, without any evidence being adduced to show what it would have brought at a public sale. In the absence then of all proof on this head, we must presume that the trustees acted fairly and discreetly, and sold such of the ground-rents only as wrere proper, in order to raise the requisite sum of money, and having done this, there remains a surplus, after paying off the mortgage and all charges, of two thousand four hundred and twenty dollars and fifty-one cents. This sum it would then seem, from the plain unequivocal terms of the will, the testator intended should be given to Mrs. Nathans, for her sole and separate use absolutely. It is therefore ordered and decreed by this Court, that the said sum of two thousand four hundred and twenty dollars and fifty-one cents of the money which is in court, be paid to the said Margaret Lucretia Nathans, for her sole and separate use ; and that the decree of the Court below be reversed, excepting as to the allowance decreed to the trustees for their trouble and services, which part of it is hereby affirmed.

Decree accordingly.